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ELCOtherNyeri HCCC No. 222 of 2012 (formerly Nyeri HCCC No. 222 of 2012, Loise Njeri & 9 others v. Joseph Maina)· [2016] KEELC 862 (KLR)

Loise Njeri & 9 others v Kamau Ngure & another [2016] KEELC 862 (KLR)

Environment and Land Court
26 May 2016
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit as res judicata because the same ownership dispute had already been decided in 1983.

What this practically means

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Executive summary

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The defendant, Joseph Maina Kamau, filed a notice of motion on 13th July 2015 seeking to strike out the plaintiffs' suit on the ground that it was res judicata, contending that the issues had been determined in previous suits involving the plaintiffs and/or their predecessors, including Nyeri HCCC No. 282 of 1983, Thika CMCCC No. 476 of 2002 and Nyeri Court of Appeal Civil Application No. 230 of 2011. The plaintiffs, through Mwangi Gathaiyu (5th plaintiff), opposed, arguing the subject matter differed (Plots Maragua Ridge 264-269 versus Loc.7/Maragua Ridge/50), that they were not aware of or served with the nullification and eviction orders, and that the suit was meant to safeguard their interests. The court, relying on its own ruling of 22nd June 2015 and the documentary evidence, found that ownership of plot 50 and the existence of Plot 39'A' (from which the suit plots were created) had been determined by a competent court in HCC 282 of 1983, where the defendant was declared exclusive owner and eviction orders issued, upheld through review, stay applications and the Court of Appeal. It held that a Ministry of Lands letter suggesting the plaintiffs were allottees could not justify re-litigation; the proper avenue for new evidence was review under Sections 7 and 100 of the Civil Procedure Act. The court found the suit res judicata and an abuse of process and allowed the application as prayed. Judgment dated 26th May 2016.

Key legal issues

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01

Whether the suit is res judicata Nyeri HCC No. 282 of 1983

Holding

Yes; the issues of ownership of Loc.7/Maragua Ridge/50 and existence of Plot 39'A' were previously determined.

Reasoning

The court found that the pleadings in HCC 282 of 1983 and the current suit raised the same issue, namely whether L.R NO. LOC7/Ridge Block 39A, from which plots 264-269 were created, exists. Plot 39'A' was excised from plot 50, ownership of which was determined in 1983 in favour of the defendant, with eviction orders issued. Some plaintiffs were parties to the earlier suit, whose decree and eviction orders were upheld through review and stay proceedings and before the Court of Appeal.

p. 4
02

Whether a letter of allotment from the Ministry of Lands entitles the plaintiffs to re-litigate

Holding

No; such evidence must be pursued by way of review, not a fresh suit.

Reasoning

The plaintiffs relied on a letter dated 23rd September 2005 indicating them as allottees of plots excised from Plot 39'A', and a Ministry of Lands letter of 10th August 2011 nullifying Plot 39'A'. The court held that even if there were evidence that Plot 39'A' exists, this does not confer a right to re-litigate a matter already determined; the recognised avenue is review under Sections 7 and 100 of the Civil Procedure Act.

p. 4
03

Whether the suit was filed to circumvent the earlier decree

Holding

Yes; the court found the suit was an abuse of court process.

Reasoning

Relying on its earlier ruling of 22nd June 2015 and the Court of Appeal ruling in Nyeri Court of Appeal Civil Application No. 230 of 2011, the court found that after failing to overturn the decree in HCCC No. 252/282 of 1983, including through dismissed stay and review applications, some plaintiffs filed a fresh suit rather than appeal, amounting to abuse of process and an attempt to circumvent the eviction orders.

p. 2

Legal principles established

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  • A suit whose issues were previously heard and determined by a court of competent jurisdiction is res judicata and cannot be re-litigated by way of a fresh suit.
  • New evidence challenging a court order must be raised by way of review, not a fresh suit.

Court orders

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  1. 1.Allowed the defendant's notice of motion dated 13th July 2015 seeking to strike out the suit on grounds of res judicata
  2. 2.Declares the suit res judicata Nyeri HCC No. 282 of 1983 and strikes it out (allowed as prayed)

Authorities

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Legislation

  • Civil Procedure Act, Cap 2 Laws of KenyaSection 7
  • Civil Procedure Act, Cap 2 Laws of KenyaSection 100

Cases cited (3)

  • Nyeri HCCC No. 282 of 1983 (also referred to as 252 of 1983)
  • Thika CMCCC No. 476 of 2002
  • Nyeri Court of Appeal Civil Application No. 230 of 2011
Jurisdiction invoked
Sections 7 and 100 of the Civil Procedure Act, Cap 2 Laws of Kenya (res judicata); first-instance civil suit jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Loise Njeri & 9 others v Kamau Ngure & another [2016] KEELC 862 (KLR)", Case Analysis (2016). Nyeri HCCC No. 222 of 2012 (formerly Nyeri HCCC No. 222 of 2012, Loise Njeri & 9 others v. Joseph Maina). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/862/eng@2016-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.